Saturday, November 13, 2010

Florida legislators will be meeting on Tuesday in special session. The main agenda item will be votes to override several bills vetoed by Governor Cirst earlier this year. If the Governor’s veto is overridden on any of those bills, it will immediately become law and go into effect.

One bill vetoed by Governor Crist is HB 1565 - Rulemaking which says that any rule set by Florida’s environmental regulators having an “adverse” impact on small businesses of $1 million over five years will have to be ratified by the Legislature.

The “adverse” fiscal impact threshold equals just over a penny for each Floridian for five years.

Almost any rule that requires polluters to clean up their act or restricts land use could trigger the ratification provision, making it almost impossible to do anything to protect clean water, stop sprawl, or reduce Florida’s waste stream. And it’s not just the environment. Traffic safety, physicians and hospitals, insurance regulations, child care, public and private schools, and scores of other areas will feel the impact too. At best, ratification will mean a one year delay to adopt rules. At worst, nothing will ever get done.

State agencies only make rules when authorized to do so in a law passed by the legislature. Requiring ratification of proposed rules means they have to go through the entire lawmaking process all over again. Since over 2600 bills are filed each session and fewer than 400 become law, it is expected that few rules will make it through. Opponents of a rule will only have to persuade a committee chair not to agenda it to block its passage.

Rulemaking is important because law sets policy without (usually) establishing all of the details to implement it. (See an example here: 62C-16Phosphate Mine Reclamation) If agency rules are suspended pending ratification, there will be no way to enforce the law that authorized the rule in the first place.

There are already extensive safeguards in place to prevent agencies from overstepping their bounds, especially with respect to small businesses and small counties. Even the House staff analysis acknowledges that proposed rules must pass muster with the Joint Administrative Procedures Committee (JAPC) to ensure the rule is a valid exercise of delegated legislative authority and that the costs it imposes are reasonable.

Not only that, agencies must prepare a Statement of Estimated Regulatory Costs (SERC) that calculates how much it will cost business to comply, how much it will cost to enforce, and any costs to local governments and impacts on revenues. Further, if anyone has presented a lower-cost alternative to the proposed rule, the SERC must include that as well, and the agency must either adopt the alternative or give a detailed explanation of why not.